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CRIMINAL LAW
Dinesh C. Pande* Revised by Dr. K. N. Chandrasekharan Pillar'*
Introductory
Under the Indian legal system the criminal liability for an act or omission arises out of a statute proscribing an act or omission. A breach of the statutorily proscribed act or the prescribed duty by a person is to be visited with punishment as sanctioned by the law. Thus, the "criminal law connotes only the quality of such acts or omissions as are prohibited under the appropriate penal provisions by the authority of the state."^1 The general law of crimes is contained in the statute law, viz., The Indian Penal Code, 1861 as amended from time to time. Various other statutes enacted by the Union and the state legislatures also make an act or omission punishable under the law which may be general,^2 special^3 or local^4 in nature. The general law on substantive crimes is contained in the Indian Penal Code ,1861. The Indian Penal Code is the basic governing statute for determining the criminal liability for offences stated in it, and also for declaring exceptions to the questions of criminal liability for the offences covered under the special or local laws. The special law is applicable to the particular subject^5 while the local law makes the law applicable to a particular part of India.^6 Any wrongful act which is thus prohibited under the general, special or local law and visited with punishment is deemed an "offence"^7 even though a civil liability may
- Formerly Associate Research Professor, Indian Law Institute, New Delhi. ** Director, Indian Law Institute, New Delhi.
- Proprietary Articles Trade Association v. Attorney General of Canada AIR 1931 P.C. 94 at
- The General Clauses Act 1897, s. 8 (38) reads: "Offence" shall mean any act or omission made punishable by any law for the time being in force. S. 40. Indian Penal Code 1861 ; see also s. 2 (a) of the Code of Criminal Procedure,
- Indian Penal Code 1861, s. 41.
- Id.,s. 42.
- Supra n. 3.
- Supra n. 4.
- S. 2 (n), Code of Criminal Procedure 1973 states: "Offence" means any act or omission made punishable by any law for the time being
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also arise out of the wrongful conduct. Thus, if a landlord had disconnected the sub-meter of his tenant it made him liable for the offence under section 426, Indian Penal Code, notwithstanding the fact that the tenant could sue the landlord for damages.^8
Mental element in crimes
The character of an act, penal or otherwise, is adjudged in accordance with the established principles of common law jurisprudence. An act assumes the character of a penal offence it if is impelled with a mental design to achieve the resulf which the law otherwise seeks to prevent. This mental state is generally designated mens rea. The elasticity of the term covers a variety of mental states which lend a colour of criminality to the wrongful act. According to Beg, J., Sometimes it is used to refer to a foresight of the consequences of the act and at other times, to the act per se irrespective of its consequences. In some cases, it stands for a criminal intention of the deepest dye, such as is visible in a designed and premeditated murder committed with a full foresight of its fatal consequences. In other cases, it connotes mental conditions of a weaker shade such as are indicated by words like knowledge, belief, criminal negligence or even rashness in disregard of consequences. At other times, it is used to indicate a colourless consciousness of the act itself irrespective of the consequences of the act, or, in other words, a bare capacity to know what one is doing as c o n t r a s t e d , for example, with condition of insanity or intoxication in which a man is unable to know the nature of the act.^9 The various forms and shades of guilty mind have been legislatively crystallized under the Indian Penal code and other criminal laws. Thus a guilty intention on the part of the wrongdoer is assessed with reference to that particular type of mental state as is required for the specified offence. As has been stated by Mayne: Every offence is defined, and the definition states not only what the accused must have done, but the state of his mind with regard to the act when he was doing it. It must have been done knowingly, voluntarily, fraudulently, dishonestly or the like. And w h e n it is stated that act must be done with a particular
in force and includes any act in respect of which a complaint may be made under s. 20 of the Cattle Trespass Act, 1871."
- Kkbon Ltd v. Shyam Kumar 1966 All. W.R. 703.
- αήα Hath v. State (1954) ILR 2 All 215 at 219-220.
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legislature with a view to fastening the liability either strictly or vicariously.^15 The dispensation of the doctrine of metis rea form any statute is within the ' powers of the legislature. But the judicial trend has been to look into the statute and read the element of guilty mind before an act is punished. The rationale for such attitude is that:
It is.... of utmost importance for the protection of the liberty of the subject that a court should always bear in mind that unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of crimes, the court should not find a man guilty of the offence against the criminal law unless he had a guilty mind.^16 The foregoing observation found approval in the Supreme Court decision in R. Hari PrasadRao v. State^17 where master and servant had been prosecuted under clause (20) and (27) of the Motor Spirit Rationing Order, 1941 for violation of the rules. The Order strictly prohibited the supply of petrol without coupons which the servant had infringed in the absence of the master. Earlier, the Privy Council had set pace for the above trend in Srinival Mall v. Emperorn^ and Emperor v. IS. Mc Mulll<)^ and allowed the courts to read into the statute the element of guilty mind in order to fasten liability. The legislative intent to dispense with the guilty mind was not read in the case where the breach of the control order involved punishment extending to three years rigorous imprisonment.^20 ' Thus, it is not suggested that... the legislature cannot introduce the principle of vicarious liability and make the master responsible for the acts of the servant although the master had not mens rea and was morally innocent. But the courts must be reluctant to come to such a conclusion unless the clear words of the statute compel them to do so or they are driven to that conclusion by necessary implication.^21 The judicial i n t e r p r e t a t i o n of statutes fastening strict liability inferentially makes the application of general doctrine of mens rea possible,
- E.g., Rule 96 (1) (f), U.P. Sugarcane (Regulation of Supply and Purchase) Rules, s. 6(3) Madras Prevention of Adulteration Act, 1918, s. 42 (1) Motor Vehicles Act 1939, clause 12 (1) Cotton Cloth and Yarn (Control) Order 1943, s. 154, Indian Penal Code 1861.
- Bread v. Wood 621.L.R. 462 (1945) followed in Snnivas Mall v. Emperor AIR 1947 P.C. 135; R. Han PrasadRao v. State AIR 1951 SC204 zndStatev. Shiv Prasad Jaiswal AIR 1956 All. 610.
- AIR 1951 SC 204.
- AIR 1947 SC 135.
- AIR 1948 SC 364.
- Mohammed Azam Khan v. The King AIR 1948 Cal. 287 to 288.
- IS. MacMull v. Emperor AIR 1948 Bom. 364 and 367.
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but it also concedes the right of the legislature to enact laws giving effect to the doctrine of strict or vicarious liability. Perhaps the doctrine would be validated in public welfare offences where the penalty is small. It may also be upheld in cases of severe penalty where the burden of proof of guilt is shifted to the accused. The newer trend can noticeably be seen in section 59 of the Foreign Exchange Regulation Act, 1969.
Group liability
The general rule of criminal liability is that an individual is responsible for his actus reus and guilty mind. However, there are variations in the rule. The vicarious and imputed liabilities of persons as well as the liability of corporate bodies are an instance in point. The vicarious nature of liability has been discussed above. Therefore, the present discussion would confine to expound the basis of imputed liability under Indian criminal law.
Liability is imputed to an individual for his contribution in a group action. Group liability under Indian criminal law arises mainly under sections 34 and 149 of the Indian Penal Code.^22 The principle enunciated under these provisions is to hold hable such persons who may be acting as a party in concert with other persons to accomplish an unlawful objective. The liability arising under these two provisions is of different nature.^23 Section 34 of the Indian Penal Code merely discloses a principle which becomes applicable only if there is a meeting of minds of the persons pursuing a criminal act, and such an act, is committed in deference to the common intent of all.^24 It is essentially, requires under this section that persons participating in the criminal act must be physically present or that
- S. 34 of the Indian Penal Code reads: When a criminal act is done by several persons in furtherance of common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. S. 149 of the Indian Penal Code reads: If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
- The leading case on the distinctive features of ss. 34 and 149,1.P.C. is Barendra Kumar Ghosh v. State of Punjab AIR 1956 SC 274. Also, Sukha v. State ofRajasthan AIR 1956 SC 513; Chikkradge Gowda v. State of Mysore AIR 1956 SC 731; Kartar Singh v. State of Punjab AIR 1961 SC 1787 and Sunder Singh v. State of Punjab AIR 1962 SC 1211.
- Mahboob Shah v. King Emperor 71 LA. 148; Kirpal v. State ofU.P. 1954 S C 706, Pandurang Tukia and Bhilia v. State of Hyderabad AIR 1955 SC 26; Rishideo Pande v. State ofU.P. AIR 1955 SC 331; Khachem Singh v. State ofU.P. AIR SC 546; Zabar Singh v. State ofU.P. AIR 1957 SC 465; B.N. Shrikantiah v. State of Mysore AIR 1958 SC 672; BharwadM. Dana v. State ofBombay AIR 1960 SC 289; Balesbwarv. State of West Bengal AIR 1964 SC 1263 and Matullah Sheikh v. State of West Bengal AIR 1965 SC 132.
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known to be likely to be committed. N o liability can be fastened on the group for any such offence as might have been committed but could not foreseeably be within the knowledge of the participants.^28 The clearest instance where the doctrine of joint liability can be invoked without difficulty is when the number of persons charged is five and evidence is adduced by the prosecution to prove the charge against all. However, in order to bring home a charge under section 149 it is not necessary that five or more persons must necessarily be brought before the court and convicted.^29 It would be necessary in such cases to prove that the accused persons brought for trial did constitute an unlawful assembly along with other named persons who, for certain reasons, could not be made available to face the charge. Another factual situation where the group liability would validly be operative is when the number of charged and convicted persons is less than five and the remaining ones are not identified. One may believe that in such situations the court would insistently demand a stricter proof regarding the fact that the likelihood of the offence being committed was within the knowledge of the unidentified members of the unlawful assembly.^30 In Dhanna v. State ofM.P?^1 five persons were tried for murder of a person. The trial judge found that though the accused were charged under sections 302 and 148 read with 149, there was no unlawful assembly. On appeal the High Court convicted one more accused, i.e., the third accused, under section 302 read with section 34 IPC. The accused appealed to the Supreme Court which ruled that the court could register a conviction under section 34 even if there is no evidence of unlawful assembly to book the accused with the help of Section 149. The Court explained that Sections 34 and 149 resemble and overlap with each other. The assertion of a right followed by the pursuit of such a right through an unlawful assembly does not absolve the participant from liability even though the assertion of right may be valid one. The attainment of an objective must be within the four corners of the law. In Gurudutta Mall v. State o/U.P.,^32 the accused persons could not avail themselves of the plea of right to self-defence, simply because they had exceeded that right. An assembly of persons which tries to protect lawful rights, even though it becomes unlawful, is not held liable for the offence under section
- But it can also be implied from the decision on Kanbi Nanji Virji v. Sute
- Gajanandv. State of Travancore, Cochin AIR 1956SC241 and Hukam Singh v. Stateof U.P. AIR 1961 SC 1541.
- Mohan Singh v. The State AIR 1963 SC 174.
- Jit Singh v. State AIR 1257 Punk. 278 and Hukum Singh v. State AIR 1959 All. 690.
- 1990 SCC (Cri) 1192.
- (1965) Cr. L.J. 242.
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ofGujaratP that besides the lawful claims, the bonafide assertion of right can also save a group of persons from liability. In this case, the accused persons were trying to assert their right to an uncultivated portion of private land which had merged with the road and the uncultivated portions and the land could not be ascertained. It is also not known whether the accused persons had acquired a prescriptive right of way over that land. The finding of the court, however, was that the accused persons had a bonafide right of way through the road, which on account of its being merged in the uncultivated portion of land authorized them to force their way through the uncultivated portion. And in the above circumstances the court thought not to hold the accused persons liable. Accordingly, it can be said that Virji's case^34 lays down a principle that a group liability cannot arise under section 149 if the common object achieved is merely of the nature of a bonafide assertion of a right through it may not strictly be justifiable under the law. The fastening of constructive liability on individuals for unlawful group behaviour can be explained as a policy of discouraging the securing of strength and resources from amongst one's own corps. Each member of the corps makes himself liable if he presents himself in an assembly of five or more persons with the common object of exercising any criminal force.^35 An assembly of persons need not initially be unlawful to pursue a common object. In Chandrika Prasad and others v. State^2 '' the accused persons were members of an assembly in which the unlawful object developed on the spot of occurrence. Each member of the assembly got engaged in committing one or the other overt act. None of them could be said to be a passive innocent spectator, hence the liability of each was held to be equal. It is likely that an innocent onlooker may get mixed up in an unlawful crowd, but he can escape from liability if he remains passive and neutral through his conduct in the course of the prosecution of the common object of those who have been unlawfully pursuing it. This, however, is a question of fact.^37 Innocent presence of a person in the unlawful assembly does absolve him of liability because of absence of the knowledge of the acts which are likely to be committed.3 8^ But if the accused joined the group in prosecution of a common object, and even if he did not inflict any injury, the liability would be the same as that of other accused persons.^39
Attempt, abetment and conspiracy
Criminal liability arises on the consummation of an overt act. An overt act
- (1970) Cr. L.J. 363.
- (1970) Cr. L.J. 363.
- Ss. 148, 149 I. P.C. State ofBihar v. Nathu Pande (1970) Cr. L.J. 5.
- AIR 1972 SC 109.
- Gokul v. State ofRajasthan AIR 1972 SC 209.
- Niaziv. State of U.P. AIR 1972 SC 860.
- Balwant Singh v. State ofHaryana AIR 1972 SC 860.
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"In order to constitute an attempt, first, there must be an intention to commit a particular offence, second, some act must have been done which would necessarily have to be done towards the commission of the offence and, third, such act must be proximate to the intended result. The measure of proximity is not in relation to time and action but in relation to intention." Three specific modes of punishing attempt are to be found under the Indian Penal Code. In the first category are to be found those attempted offences which are treated at par with the actual commission of offences for purposes of punishment. These relate to offences against the state,4 3 offences relating to army, navy and air force,^44 offences against public tranquility^45 and relating to public servants.^46 Attempts made relating to offences against public justice^47 as well as relating to coins^48 come within the above category. Extortions,^49 dacoity,^50 robbery^51 and certain kinds or trespass5 2^ whether attempted or committed are punishable likewise. A t t e m p t e d m u r d e r , 5 3^ culpable homicide,5 4^ suicide^55 and robbery5 6 constitute the second category. The intentional attempt of the foregoing four offences is viewed with lesser degree of severity for inflicting punishment. The actual commission of any of the foregoing offences (except suicide which cannot be punished) and the attempts thereof are m e n t i o n e d u n d e r separate sections and p u n i s h m e n t s are provided accordingly. The residual cases of attempt are dealt with under section 511 of the Indian Penal Code which reads:
- Attempting to wage war against government of India (s. 121,1.P.C.), attempt to wrongfully restrain the President or the Governor from exercise of lawful power (s. 124,1.P.C.), sedition (s. 124,1.P.C.), attempt to wage war against any Asiatic power in alliance with the government (s. 125 I.P.C.) and attempt to rescue or harbour an escaped prisoner (s. 130, I.P.C).
- Attempt to seduce a soldier, sailor or airman from duty (s. 131, I.P.C).
- Attempt to assault or obstruct public servant when suppressing riot (s. 152, I.P.C). See also s. 153 I.P.C; attempt enmity between different groups on grounds of religion, race, language etc. (s. 153, I.P.C).
- Attempt to obtain illegal gratification by public servant (ss. 161-163 and 165, I.P.C).
- Attempt to use false evidence, certificate, declaration (ss. 196, 198 and 200, I.P.C); attempt to obtain gratification to screen an offender from punishment (s. 213, I.P.C.)
- Attempt to induce person to receive counterfeit coin (ss. 240, 241, I.P.C.) Also s. 251 I.P.C.
- The Indian Penal Code, ss. 385, 387, 389.
- Id, ss. 391, 397, 398.
- Id., ss. 397, 398.
- Id., s. 460.
- Id., s. 307.
- Id., s. 308.
- Id., s. 309.
(^312) INDIAN LEGAL SYSTEM
W h o e v e r a t t e m p t s t o c o m m i t an offence p u n i s h a b l e b y t h i s Code with imprisonment for life or [other] i m p r i s o n m e n t , or t o cause s u c h an offence t o be c o m m i t t e d , a n d in s u c h a t t e m p t does any act towards the commission of the offence, shall, where n o express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description p r o v i d e d for the offence, for a t e r m w h i c h m a y extend t o one- half of the imprisonment for life, or, as the case m a y be, one-half of t h e longest t e r m of i m p r i s o n m e n t provided for that offence, or w i t h such fine as is provided for the offence, o r w i t h b o t h.
Abetment: Participation in the actual c o m m i s s i o n of crime m a y either be v o l u n t a r y o r it m a y be at the instance of another p e r s o n w h o p r o m p t s the doer t o perform the act. In the latter case the person becomes an abettor.5 7 The liability of the abettor continues to remain even w i t h o u t the abetted act being c o m m i t t e d. 5 8^ A b e t m e n t m a y assume t h e f o r m o r (a) instigation (b) intentional aiding, or (c) conspiracy.5 9 W h e n an act is abetted a n d a different act is d o n e t h e liability of t h e abettor is for the act done provided it was the probable consequence of the abetment.6 0^ Abetting the commission of an offence b y the public generally
- Id., s. 393.
- S. 108, Indian Penal Code, reads: A person abets an offence, who abets either the commission of an offence, or the commission or an act which would be an offence, if committed by a person capable by law of committing on offence with the same intention or knowledge as that of the abettor.
- Expl. 92 to s. 108, Indian Penal Code, states: To constitute the offence of abetment it is not necessary that the act should be committed, or that the effect requisite to constitute the offence should be caused.
- S. 107 provides: A person abets the doing of a thing, who First- Instigates any person to do that thing; or Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; Thirdly- Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation- A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate of that thing. Also see Kartar Singh v. State of Punjab 1994 SCC (Cri.) 899.
- S. 111,1. P.C., reads: When an act is abetted and a different act is done, the abettor is liable for the act done, in the same manner and to the same extent as if he had directly abetted it: Provided the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment.
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The Indian law of conspiracy is much wider in scope.6 7^ In Ajay Aggarwal v. Union oflndid^ the Supreme Court explained thus:
"An agreement between two or more persons to do an illegal act or legal acts by illegal means is criminal conspiracy. If the agreement is not an agreement to commit an offence, it does not amount to conspiracy unless it is followed up by an overt act done by one or more persons in furtherance of the agreement. The offence is complete as soon as there is meeting of minds and unity of purpose between the conspirators to do that illegal act or legal act by illegal means." It is a continuing offence and continues to subsist and committed whenever one of the conspirators does an act or series of acts.
The kinds of conspiracies made punishable under the Code are abetment by conspiracy,^69 criminal conspiracy as defined in section 120A and, specific conspiracies such a conspiracy to wage or attempt to wage war against the government^70 or thuggee^71 or belonging to a gang of thieves^72 and dacoits.^73
Exceptions to criminal liability
Mistake of fact: Sections 76 t o 79 of the Indian Penal C o d e cover situations wherein exemptions from criminal liability can be had if the person has acted in good faith but mistakenly. This group of sections, however, rules out the defence of mistake of law in accordance with the accepted maxim ignorantia leges non excusat. Thus it would be no excuse to offer that the person was unaware of the laws, rules or regulations; although in case of subordinate legislation imposing penal liability it is necessary that it be publicized and made known to the public through established and accessible media. The foregoing provisions comprehend that the liability is negatived if, (1) the actor was ascertainably led to understand the existence of facts in the manner he took them. Thus a police officer arresting a wrong person under a warrant under a bonafide mistake of fact would be protected.^74
- Gour, I Penal Law ofIndia, 4 th^ ed.
- 1993 SCC (Cri) 961.
- The Indian Penal Code 1861, s. 107. Also see Hardyan Chakrabarty v. Union of India 1990 SCC (Cri.) 280.
- Id., s. 121 A.
- Id.,%. 310, 311.
- Id.,$. 401.
- Id., s. 402.
- Emperor v. Gopali Kallaya 26 Bom. L.R. 138. Also see Ram Bahadur Thapa case AIR 1960 Ori. 161.
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(2) there be absolute ignorance of the real circumstances which constitute the act of offence, then the act believed by the actor can justifiably be pleaded as defence.^75 Thus, where the accused shoots and kills another person in a jungle under circumstances which led him to mistake the deceased as a wild animal, he can avail the protection because at the time of the performance of the act, he believed in the legal justification of his act.^76 (3) the person acted under the belief that he was bound by law to act in the way he did. Thus compliance of a superior order which is in conformity with law would not entail responsibility.^77 (4) the acts pertain to judicial acts exercised in the belief of lawful exercise of power. The provision purports to grant immunity from criminal liability for acts of the judges.^78 (5) the act is done by a person other than the judge pursuant to the judgment or the order of the court. A common feature of all the situations, warranting the plea of mistake of fact to negative criminal liability, is that the element of "good faith" has necessarily to be present in the actions of the doer.^79 The expression "good faith" in the context of criminal law is understood to mean as much "due care and attention" as can reasonably be expected of the actor in the circumstances. The standard of "due care and attention" is not to be that of a reasonable or a prudent man, but that of the actor.
Pleas against liability for harm caused by:
Accident: Fortuitous and unexpected events are unintentional. Hence, culpability ought not be attached to a wrong which was not contemplated as a resulting situation. The law admits that a harm caused by a person to others may be exempted from liability in cases of accident and necessity. In the case of accident the defence is permissible if the party was engaged in doing a lawful act without having criminal intention or knowledge.^80 It is also imperative that the means and manner opted for doing the work are also lawful. The lawfulness of the matter, manner and means are further to
- King v. TukipadaMandal AIR 1951 Ori 284.
- See Emperor v. Jagmoha AIR 1947 All 99. 77. For protection against prosecution for acts done in pursuance of respondent superior see s. 132, Criminal Procedure Code, 1973.
- The protection against civil liability to the officers acting judicially is governed by the Judicial Officers Protection Act, 1850.
- S. 52 of the Indian Penal Code 1961, defines "good faith" as below: Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention. State ofOrissa v. Ram Bahadur Thapa AIR 1960 Ori.
- S. 80, Indian Penal Code, 1861.
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which a valuable common interest which is endangered is preserved by the sacrifice of some less valuable interest. In such cases the gratitude of the community is due to the person who acts."^85
Consent: In addition to the situations of harm caused by accident or necessity, a plea for negativing criminal liability can validly be put forth in cases where a person willingly and voluntarily concedes to undergo pains, deprivations or sufferings at the hands of other person either explicitly or impliedly. The consequences arising out of such conduct and the liability arising there from in criminal law comparably correspond to those factual situations in which the liability is answered through the maxim volenti non fit injuria. In other words, the maxim is extendable to protect a person against penal action in such matters as are governed by the rules of law relating to consent. The consent in criminal law is understood to mean, "a consent freely given by a rational and sober person so situated as to be able to form a rational opinion upon the matter to which he consents."8 6^ Mistake, misrepresentation, force, fraud and the like vitiate the qualitative effect of consent. Consent by a person who has attained the age of majority (i.e. eighteen years), cannot stand as guarantee against the criminal liability of the person whose actions result in death or grievous hurt to the person consenting. It may have the effect of reducing the gravity of the offence.^87 However, the foregoing limitation gets diluted and a justification may arise for even causing death or grievous hurt in case of lawful games, sports or surgical operations and the like. The element of fairness as well as the requisite skill in the performance of the act must not be in question. In the infliction of injuries on one's person what is consented to is the readiness to risk the harm under known circumstances, with an implicit understanding that the matter would be conducted without abuse and with due prudence. Section 88 which primarily gives protection to the members of medical profession provides: Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or take the risk of that harm.
- Radbruch, 'Jurisprudence in the Criminal Law" ', 18 J. Comp. Leg. And Int. Law, 1936, pp. 212 and 220.
- Stephen, Digest of Criminal Law, article 244.
- See s. 300, exception v of the Indian Penal Code, 1861.
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Illustration
A and Z agree to fence with each other for amusement. This agreement implies the consent of each to suffer any harm which, in the course of such fencing, may be caused without foul play; and if A while playing fairly, hurts Z, A commits no offence. The law recognizes that a parent or guardian can exercise power over his young child or ward, and inflict reasonable punishment for the benefit of the child. This power can be properly delegated to school authorities for the exercise of discipline over children below twelve years of age, and it implies consent on the part of the parent. The person in loco parentis is thus exempted from the penal consequences for chastising the ward for his benefit. A moderate and reasonable corporal punishment by a school teacher with a view to disciplining and correcting a child from an erring behaviour is thus within the exercise of this power.8 8^ The disciplining power is not strictly confined to the children within the age group of twelve years, but is also applicable to the children over that age and can also be used for the benefit of unsound persons as well.^89 The Indian Penal code deals with the cases of injury caused with the consent of the victim or his guardian.^90 The cumulative effect of these sections has been summed up by Nigam thus: ...first, a person may not consent to any intentional causing of death under any circumstance. Secondly, he may not consent to the intentional causing of grievious hurt or to an act likely to cause death, unless the harm caused is for his benefit. Such a benefit may not be a pecuniary benefit nor a benefit to be derived by any person other than the person harmed. Thirdly, a guardian may not consent to an act intended to cause death or which is an attempt to cause death under any circumstances except for the benefit of the minor, unless the harm caused is for the purpose of "preventing death or grievous hurt, or the curing of any grievous disease or infirmity." Fourthly, when the consent
- KingEmperorv.HaungBa1haung27Ci.L](im).
- G. B. Ghatge v. Emperor 50 Cr. LJ 789. Also see S. 89 of the Indian Penal Code, 1861.
- The Indian Penal Code, ss. 87, 88 and 89, cover cases of consented injuries. S. 87 reads: Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason or any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.
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Compulsion: Compulsive participation in a criminal act may not fasten penal liability on a person if he acts on the fear of instant death. The threat of instant death must be such as may inevitably result in death which could in no way be averted except by participating in the c r i m e. " The fact depending on the circumstances of each case would determine whether the act was promoted by such fear.
Three essential requirements are to co-exist in order to avail the defence of compulsion to criminality. These are:
(1) that the person did not voluntarily expose himself to a situation which subjected him to the constraint of acting under the compelling circumstances. Thus, a person who, of his own accord, or by reason of a threat of being beaten, joins a gang of dacoits knowing their character, is not entitled to the benefit of this exception, on the ground of his having been compelled by his associates to do anything that is an offence by law.^100 (2) that the fear of instant death was present at the time of action, and the action was prompted by it; (3) that there was no option for the actor but to do or die. The foregoing factors do signify the principle that in the dire consequences of death it is enacted that "self preservation shall be a defence, but a defence only when it was a case of self-preservation."^101 The case of self-preservation where in compulsion becomes a defence, is even denied if the act tends to be murder or offences against the state punishable with death. A mere compulsion to save one's life by taking another man's life has no justification.^102 It cannot even be sustained as a plea of extenuating circumstances.^103 The rationale of denying compulsion as defence in offences against the state punishable with death is that the state has a right to insure its self-preservation by enacting deterrent pains and penalties.^104 Unlike the English law^105 the state in India demands that it shall be preserved at the expense of its citizens. Trifles: The law does not take not of trifles {de rninimis non curat les) even though the trivialities may fall within the letter of penal law. According to the Law Commission "there are innumerable acts without performing which men cannot live together in society, acts which all men constantly do and
99. S. 941. P.C.
lOO.Expl. 1 to s. 94 Indian Penal Code, 1861.
- H. S. Gour, I Penal Law of India, 1972, p. 704.
- Dudley & Stephen 14 Q.B.D. 273; UmarDin 671 C. 340.
- Emperor v. Hima Munda 39 Cr. L. 554.
- S. 121,1.P.C., is the only capital offence which falls in this category.
- McGrowther (1746) 18 St. Tr. 301, 393, 394, followed in Aung Hla v. Emperor AIR (1931) Rang. 235 at p. 241.
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suffer in turn, and which it is desirable that they should do and suffer in turn, yet which differ only in degree from crimes".^106 Such transgressions and inconveniences need not be the matter of a complaint to be taken note of by the law. The principle of de minimis non curat lex is applicable to all kinds of trivialities affecting one's person, reputation or property, but the triviality of the offence must not be judged solely by the measure of harm; it depends equally upon other considerations. Triviality would thus depend on the relative position of parties, how one party stood to another, and this will then determine the nature and degree of the crime.^107 Right of private defence: In formulating the law of self-defence, the Law Commission designedly sought to give wider latitude, primarily to the Indian people in order "to rouse and encourage a manly spirit" as they were "too little disposed of to help themselves." The above thesis apart, it may be stated that self-preservation, which is implicit in the right of private defence, has universally been a strongly embedded instinct in the individual self. It is for this reason that every civilized society has accorded recognition to the right of private defence, and thus the Indian Penal Code specifically states that "nothing is an offence which is done in the exercise of the right of private defence.^108 The exercise of the right of private defence is permitted to defend one's own self. It also extends to protect any other person against any offence affecting the human body. It would also be valid to exercise the right against acts which may not constitute an offence in certain circumstances.^109 The defence of the person may even demand the taking away of the life of the person against whom the right is exercised. The law concedes this d e m a n d in situations where an assault may reasonably cause t h e apprehension of death or grievous hurt or the assault may intentionally be directed either to commit rape, sodomy, abduction, kidnapping or to wrongfully confine a person so as to deprive him of recourse to public a u t h o r i t i e s for release.1 1 0^ An assault which reasonably causes the apprehension of death may extend the right of the defender even to cause
- Law Commission's Report on the draft Indian Penal Code, Note B.
- See Veeda Meneges v. YusufKhan AIR 1966 SC 1773.
- S. 96, Indian Penal Code 1861.
- S. 98,1.P.C. provides: When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by person of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence. See Viswanath v. State ofUPAiR 1960 SC 67.
- The Indian Penal Code, s. 100.
